You are on page 1of 41

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF MISSISSIPPI


NORTHERN DIVISION

DAVID CABALLERO, JUDITH CABALLERO, )


REVITIA CALDWELL, DORSEY CARSON, )
SUSAN CARSON, LASHRON COOLEY, )
KEYONDA CRAFT, ANITA DEROUEN, )
AMELIE HAHN, ANNA INGEBRETSEN )
HALL, WES HARP, TARASA BRIERLY- )
HARP, CONSTANCE LLOYD, ROBBY )
LUCKETT, RUKIA LUMUMBA, CHAKA )
BENJAMIN, AMANDA MCGUFFEY, MITCH )
MCGUFFEY, JOY PARIKH, KERI PEREZ, )
TREY PEREZ, EARLINE RAWLS, KIM )
ROBINSON, LARRY STAMPS, ALBERT )
SYKES, LAKENDRA TRAVIS, STEVE )
TUTTLE, JULIE WEEMS, AMARYLIS WEST, )
KRISTIAN WOODRUFF, and their minor )
SCHOOL CHILDREN, all students of the )
Jackson Public School District. ) CAUSE NO.: ________________
)
Plaintiffs, )
)
v. )
)
CAREY WRIGHT, MISSISSIPPI )
STATE SUPERINTENDENT )
OF EDUCATION; ROSEMARY AULTMAN, )
CHAIR OF THE STATE BOARD OF )
EDUCATION; AND )
HEATHER WESTERFIELD, CHAIR OF THE )
STATE COMMISSION ON SCHOOL )
ACCREDITATION. )
)
Defendants. )

EMERGENCY PETITION FOR TEMPORARY AND PERMANENT INJUNCTION,


AND COMPLAINT FOR RELIEF UNDER 42 U.S.C. 1983

(INJUNCTIVE RELIEF REQUESTED)

COME NOW Plaintiffs David Caballero, Judith Caballero, Revitia Caldwell, Dorsey

Carson, Susan Carson, Lashron Cooley, Keyonda Craft, Anita DeRouen, Amelie Hahn, Anna

1
Ingebretsen Hall, Wes Harp, Tarasa Briefly-Harp, Constance Lloyd, Robby Luckett, Rukia

Lumumba, Chaka Benjamin, Amanda McGuffey, Mitch McGuffey, Joy Parikh, Keri Perez, Trey

Perez, Earline Rawls, Kim Robinson, Larry Stamps, Albert Sykes, Lakendra Travis, Steve Tuttle,

Amarylis West, and Kristian Woodruff (collectively, JPS Parents), and their minor school

children, all students of the Jackson Public School District (JPS Schoolchildren), and file this,

their Complaint against Carey Wright, Mississippi State Superintendent of Education; Rosemary

Aultman, Chair of the State Board of Education; and Heather Westerfield, Chair of the State

Commission on School Accreditation.

1. This is an action for injunctive, declaratory and equitable relief for Defendants

violations of the procedural due process, substantive due process, and equal protection clauses of

Fourteenth Amendment to the U.S. Constitution, for deprivation of civil rights, and for actionable

violations under 42 U.S.C. 1983 and 1988, and 28 U.S.C.S. 1343, wherein Plaintiffs seek to

enjoin the Defendants from determining whether an extreme emergency situation exists, and

enjoin a state takeover of the Jackson Public School District and their public schools, without first

affording Plaintiffs notice and a hearing as required by the Due Process Clause.

2. The Defendants engaged in unconstitutional actions that have harmed Plaintiffs, the

JPS Schoolchildren and JPS Parents; and deprived Plaintiffs of their constitutional rights.

I. JURISDICTION AND VENUE

3. This Court has original jurisdiction over Plaintiffs claims pursuant to 28 U.S.C.

1331 and 1343. The Court has jurisdiction over the state law claims pursuant to 28 U.S.C. 1367.

4. This Court is the proper venue for the instant dispute pursuant to 28 U.S.C. 1391,

as the actions alleged herein occurred in the Southern District of Mississippi.

5. Defendants do not have sovereign immunity and are amenable to suit in this Court.

2
6. Furthermore, suits for injunctive and declaratory relief, and under 42 U.S.C. 1983

and 1988, do not implicate the Mississippi Tort Claims Act.

II. PARTIES

7. Plaintiffs are minor and adult residents of Jackson, Hinds County, Mississippi.

Plaintiffs are schoolchildren enrolled and attending public schools within the Jackson Public School

District (JPS or the JPS District), and their parents.

8. Defendant Carey Wright is the Mississippi State Superintendent of Education (the

State Superintendent).

9. Defendant Rosemary Aultman is the Chair of the State Board of Education (the

State Board).

10. Defendant Heather Westerfield is the Chair of the State Commission on School

Accreditation (the Commission).

III. FACTUAL ALLEGATIONS

11. Over the course of over twenty years, beginning in 1996, the Mississippi

Department of Education (MDE) has taken over public school districts on nineteen (19) different

occasions.

12. Defendants are all officers of MDE with authority to set policies and procedures,

either formally or informally, including policies and procedures for hearings on whether an

extreme emergency situation exists justifying a state takeover.

13. Many of those public school districts were taken over under these Defendants

policies and procedures.

3
14. Defendants policies and procedures were used last week when the Commission and

State Board held separate hearings on whether an extreme emergency situation exists justifying

a state takeover of Plaintiffs public schools and their school district.

DEFENDANTS AND MDES TAKEOVERS HAVE MORE THAN A DE MINIMUS EFFECT ON PARENTS
AND SCHOOLCHILDRENS CONSTITUTIONAL RIGHTS TO EDUCATION

15. Plaintiffs are in immediate and imminent threat of a state takeover of their public

schools and school district.

16. Upon each of Defendants and MDEs takeovers, the public school districts school

board is immediately dissolved, and with it all semblance of local control.

17. That is exactly what Defendants have sought to do in this instance. The Jackson

School Board will be removed and replaced with state authority and control, without any due

process being afforded to Plaintiffs.

18. If the Defendants and MDE are allowed to take over the JPS District, the JPS

Districts Superintendent is automatically terminated, without any due process hearing for

Plaintiffs, JPS Schoolchildren and JPS Parents, or any meaningful opportunity to be heard.

19. Under each of Defendants and MDEs conservatorship, Defendants, directly and/or

indirectly, have the power to terminate and/or refuse to rehire all public school district employees,

including district teachers and principals, and Defendants directly or indirectly use that power to do

so.

20. That is exactly what Defendants have sought to do in this instance, without any due

process being afforded to Plaintiffs.

21. Upon each MDE takeover, Defendants, directly and/or indirectly, have the power to

terminate and/or refuse to rehire the districts administrators, and Defendants directly or indirectly

use that power to do so.

4
22. That is exactly what Defendants have sought to do in this instance, without any due

process being afforded to Plaintiffs.

23. Upon each MDE takeover, Defendants, directly and/or indirectly, take over total

control of the districts finances.

24. That is exactly what Defendants have sought to do in this instance, without any due

process being afforded to Plaintiffs.

25. Under each of the Defendants and MDEs conservatorships, Defendants, directly

and indirectly, have the power to raise school district taxes 4% per year, each year, without any

local representative, voice, or vote in the mattertrue local taxation without representation.

26. For example, in Leflore County, that districts conservator has raised taxes every

year for many years, without evidence of any academic improvement.

27. Parents and schoolchildrens Constitutionally-recognized property and liberty

interests in public education are directly and meaningfully impacted by Defendants and MDEs

accreditation and conservatorship proceedings.

DEFENDANTS AND MDES TAKEOVERS ARE FAILURES, AND DIRECTLY AFFECT PARENTS AND
SCHOOLCHILDRENS CONSTITUTIONAL RIGHTS TO THEIR PUBLIC SCHOOL EDUCATION

28. Defendants wrongly assume that a takeover by them and MDE of any unsatisfactory

public school district will actually improve those unsatisfactory school districts.

29. Some of Defendants and MDEs takeovers have occurred after Defendants and

other Commissioners and State Board members have found, as they have here, the existence of an

extreme emergency situationthat jeopardizes the safety, security or educational interests of

the children enrolled in the schools in that district and that emergency situation is believed to be

related to a serious violation or violations of accreditation standards or state or federal law. Miss.

Code. Ann. 37-17-6(12)(b) (emphasis added).

5
30. Clearly, the applicable statute deals with the safety, security or educational interests

of the children enrolled in the schools in that district which are directly affected, as expressly stated

in Miss. Code. Ann. 37-17-6(12)(b).

31. Equally as clear is that the Plaintiffs, which include the children enrolled in the

schools in that district, have a Constitutional right to notice and to be heard on Defendants actions

affecting Plaintiffs safety, security or educational interests.

32. To state the obvious, an impending state conservatorship, and Defendants and

MDEs attempts to take over Plaintiffs public school district, directly impacts these Plaintiffs

safety, security [and] educational interests.

33. A state takeover would have more than a de minimus effect on these Plaintiffs

safety, security [and] educational interests, particularly considering MDEs failures to improve

students academic achievements in takeover districts.

34. Of the nineteen (19) state takeovers by MDE since 1996, three (3) were second

takeover attempts by MDE to improve the very same districts that MDE had failed at improving

before.

35. For these much smaller public school districts that have been taken over by

Defendants and/or MDE (none larger than 3,500 students), Defendants and MDE have an abysmal

record.

36. Out of the nineteen (19) state school district takeovers by the Defendants and MDE,

the vast majority of these districts have been and continue to be failing D and F grade districts,

even by MDEs subjective and spurious rankings and grades.

6
37. Public school districts are often in worse condition after a takeover than when

Defendants and MDE took them over; few public school districts, if any, show any appreciable,

sustainable improvements.

38. Of the nineteen (19) takeovers of sixteen (16) separate districts, fourteen (14) public

school districts exist today in one form or another.

39. Of these fourteen (14) currently-existing districts that have been taken over by

Defendants and MDE, most are currently unsatisfactory D graded districts in the bottom 20% of

all Mississippi schools.

40. Three (3) takeover districts are currently failing F grade districts that among the

very worst in the entire state; four (4) districts are in the rock bottom 10% of the MDE rankings.

41. For 2016, the statuses for public school takeover districts are as follows:

a. North Panola School District (1996-1997; 2008-2013) (~2,200 students at

takeover):

North Panola was one of MDEs first takeovers, and was taken over by MDE

again a second time.

Even after a combined six (6) years of unsuccessful MDE takeovers, North

Panola has no appreciable academic improvement.

According to MDE rankings and gradings, North Panola is currently ranked

97th of the 127 ranked school districts, and has an unsatisfactory D grade.

b. Tunica County School District (1996-2002; 2015-present) (~1,600 students at

takeover):

Tunica is a small district, and was one of MDEs first takeovers.

7
After five (5) years of an unsuccessful MDE takeover, Tunica was also taken

over again a second time.

Even after a combined eight (8) years of unsuccessful MDE takeovers,

Tunica County only last year moved from a D to a C grade.

Tunica County is currently ranked 95th of the 127 ranked school districts.

c. Oktibbeha County School District (1997-2002; 2012-2015) (~1,449 students at

takeover):

Oktibbeha County no longer exists in its prior form.

After a combined eight (8) years of unsuccessful MDE takeovers, Oktibbeha

County had not improved academically, and was combined with the successful

Starkville School District by the Mississippi Legislature.

The newly combined Starkville/Oktibbeha County School District is

curiously unranked, and has a C grade.

d. North Bolivar County School District (2005-2006) (~890 students at takeover):

North Bolivar County no longer exists in its prior form.

After a year of an unsuccessful MDE takeover, North Bolivar County had

not improved by 2014, so the district was combined with the Mound Bayou School

District.

North Bolivar Consolidated is currently ranked 112th of the 127 ranked

school districts (ranked below the JPS District), and has an unsatisfactory D

grade.

8
e. Holmes County School District (2006-2007) (~3,557 students at takeover):

Even after a year of an unsuccessful MDE takeover, Holmes County has no

appreciable academic improvement.

Holmes County is currently ranked 123rd of the 127 ranked school districts

(ranked below the JPS District), and has a failing F grade.

f. Jefferson Davis County School District (~1,500 students at takeover):

Even after two (2) years of an unsuccessful MDE takeover between 2007-

2009, Jefferson Davis County has no appreciable academic improvement.

Jefferson Davis is currently ranked 92nd of the 127 ranked school districts

(ranked below the JPS District), and has an unsatisfactory D grade.

g. Hazelhurst School District (~1,660 students at takeover):

Even after four (4) years of an unsuccessful MDE takeover between 2008-

2012, Hazelhurst has no appreciable academic improvement.

Hazelhurst is currently ranked 117th of the 127 ranked school districts

(ranked below the JPS District), and has an unsatisfactory D grade.

h. Indianola City School District (~2,600 students at takeover):

The Indianola City School District no longer exists in its prior form.

Even after four (4) years of an unsuccessful MDE takeover between 2008-

2012, Indianola had not improved academically, and the district was combined with

Sunflower County and Drew to create the Sunflower County Consolidated School

District.

9
Sunflower County Consolidated is currently ranked 113th of the 127 ranked

school districts (ranked below the JPS District), and has an unsatisfactory D

grade.

i. Tate County School District (~3,100 students at takeover):

Even after three (3) years of MDE takeovers between 2009-2012, Tate

County has a C MDE accountability grade, making Tate County one of the only

state takeover districts to even have a satisfactory rating.

Tate County is currently ranked 74th of the 127 ranked school districts.

j. Sunflower County School District (~1,670 students at takeover):

Sunflower County no longer exists in its prior form.

After two (2) years of an unsuccessful MDE takeover between 2010-2012,

Sunflower County had not improved academically, and the district was combined

with Indianola and Drew to create the Sunflower County Consolidated School

District.

Sunflower County Consolidated is currently ranked 113th of the 127 ranked

school districts (ranked below the JPS District), and has an unsatisfactory D

grade.

k. Okolona School District (~ 657 students at takeover):

Even after two (2) years of an unsuccessful MDE takeover between 2010-

2012, Okolona has no appreciable academic improvement.

Okolona is currently ranked 94th of the 127 ranked school districts, and has

a failing F grade.

10
l. Drew School District (~675 students at takeover):

The Drew School District no longer exists in its prior form.

Even after an unsuccessful MDE takeover between 2011-2012, Drew had

not improved academically, and the district was combined with Sunflower County

and Indianola to create the Sunflower County Consolidated School District.

Sunflower County Consolidated is currently ranked 113th of the 127 ranked

school districts (ranked below the JPS District), and has an unsatisfactory D

grade;

m. Aberdeen School District (~1,451 students at takeover):

Aberdeen is currently ranked 106th of the 127 ranked school districts (ranked

below the JPS District).

After five (5) years of an unsuccessful MDE takeover between 2012-2017,

Aberdeen has a C grade, making Aberdeen one of the only state takeover districts

to even have a satisfactory grade, which is in itself suspect considering Aberdeens

low 106th ranking.

n. Leflore County School District (~2,850 students at takeover):

Even after four (4) years of an unsuccessful MDE takeover between 2013-

present, Leflore County has no appreciable academic improvement.

Leflore County is currently ranked 124th of the 127 ranked school districts

(ranked below the JPS District), and has an unsatisfactory D grade;

o. Claiborne County School District (~1,709 students at takeover):

Even after three (3) years of an unsuccessful MDE takeover between 2013-

2016, Claiborne County has no appreciable academic improvement.

11
Claiborne County is currently ranked 121st of the 127 ranked school districts

(ranked below the JPS District), and has a failing F grade.

p. Scott County School District (~4,013 students at takeover):

Scott County was a successful B grade public school district at the time of

the MDE takeover.

After a yearlong MDE takeover between 2014-2015, Scott County did not

improve academically.

Scott County is currently ranked 58th of the 127 ranked school districts, and

has a B grade, which is the same grade and ranking as when it was taken over.

42. By any stretch of the imagination, this takeover history by Defendants and MDE

cannot be considered a successful record.

43. Nevertheless, despite this long list of student academic failures in Defendants and

MDEs takeovers (including two smaller districts that are still failing F grades under current MDE

conservatorship), Defendants and MDE now have their sights on taking over the JPS District, the

only urban school district located in Mississippi.

44. The JPS District has roughly 27,000 students, making it the second-largest public

school district in the entire state.

45. Defendants and MDE have never taken over a public school district anywhere near

as large as the JPS District.

46. Specifically, the largest public school district previously taken over by Defendants

and MDE was Holmes County, with ~3,557 students, which is a failing F grade district, even

after the Defendants and MDE took it over under a conservatorship.

12
47. The Holmes County School District is 13.2% the size of the JPS District. Stated

differently, the JPS District is roughly seven and a half times (7.5 x) larger than the largest district

ever taken over by Defendants and MDE.

48. The Defendants and MDE lack any track record of taking over any district this size,

much less taking over one successfully. Defendants and MDE do, however, have a record of failure

in much, much smaller districts.

49. Moreover, Defendants and MDE have never taken over a school district with as

many top-ranked schools as are within the JPS District, with thousands of high-performing

students.

50. Specifically, the JPS District has many A, B, and C grade schools, including

three of the top public elementary schools in the entire stateCasey Elementary, Davis

Elementary, and McWillie Elementary 1.

51. These quality, high-performing schools have nowhere to go but down with a

takeover by Defendants and MDE.

1
Because of MDEs annual grading changes over the last three years, it is next-to-impossible to do an
apples-to-apples comparison of any grades at any public schools between the 2014-2015, 2015-2016, and
yet-to-be-issued 2016-2017 school years. As just one example, McWillie Elementary was an A graded
Montessori school by MDE each and every year until 2016, when, despite continued superior academic
testing, the school was suddenly dropped to a C because of an arbitrary change in MDE grading,
including penalizing the school for having only nine 5th graders instead of ten, even though all 5th graders
passed the MDE testing. This significant two-grade drop in the grade at McWillie Elementary, which was
not based upon academic performance and was clearly arbitrary, was nevertheless one of the reasons that
the JPD District was declared by MDE to have dropped from a D to F in 2016, which was in turn
used by Defendants, the Commission, and the Board to find an extreme emergency situation at JPS.
Apparently realizing that its 2016 changes resulted in arbitrary school grades, MDE has once again
changed its grading for a new grading system in 2017.

13
DEFENDANTS AND MDES PLANNED TAKEOVER OF THE JPS DISTRICT WILL DIRECTLY AFFECT
PLAINTIFFS CONSTITUTIONAL RIGHTS TO THEIR SAFETY, SECURITY [AND] EDUCATION

52. JPS Schoolchildren and JPS Parents have a property and liberty interest in public

education.

53. Plaintiffs have been locked out of the process for the Defendants and MDEs

accreditation and extreme emergency situation2 conservatorship hearings.

54. These Plaintiffs can and will be will be harmed by the impending takeover by

Defendants and MDE.

55. In any MDE conservatorship hearing, the best interests of JPS schoolchildren,

including Plaintiffs, should be the most important factor considered, evidenced, discussed, and

decided upon.

56. Yet, to the extent such discussions of the best interests of JPS schoolchildren

occurred at all regarding the JPS District, there was minimal evidence, discussion or consideration

in these MDE hearings affecting these Plaintiffs significant property and liberty rights.

57. To the contrary, rather than having any MDE accreditation and takeover hearings

focused on the best interests of JPS schoolchildren and JPS parents, including student academic

performance and/or curricular and extracurricular accomplishments, these MDE accreditation and

conservatorship hearings on the JPS District have been more akin to a criminal prosecution.

58. The MDE extreme emergency situation accreditation and conservatorship

hearings had little to no discussion of the best interests of JPS students, like Plaintiffs.

2
An extreme emergency situationthat jeopardizes the safety, security or educational interests of the
children enrolled in the schools in that district and that emergency situation is believed to be related to a
serious violation or violations of accreditation standards or state or federal law. Miss. Code. Ann. 37-
17-6(12)(b).

14
59. The MDE accreditation and conservatorship hearings were unnecessarily

defamatory and adversarial in nature against Plaintiffs public school district, and its students,

parents, teachers, principals, and administrators.

60. Defendants and MDE have not asked to hear from the Plaintiffs, nor have they given

the Plaintiffs any real opportunity to be heard on the Plaintiffs public education interests and other

Constitutionally-protected rights.

61. To state the obvious, Plaintiffs have an important interest in whether any extreme

emergency situation is found to exist as to the safety, security or education of these JPS

Schoolchildren, or any of them.

62. Defendants did not provide Plaintiffs with an opportunity to be heard as to whether

any extreme emergency situation exists in the District, which is a precondition to takeover by

Defendants/MDE.

63. JPS schoolchildren and JPS parents such as Plaintiffs have a right to be concerned

about any conservatorship proceedings, and to be heard.

64. Plaintiffs have a constitutional right to voice those concerns to Defendants and

MDE, including concerns regarding Defendants and MDEs consistent track record of failed state

school district takeovers.

65. Plaintiffs have a right to present evidence and express their beliefs that long-term

improvements to JPS can only be accomplished through local controllocal parents, local teachers,

local representation, and local leadership.

66. Plaintiffs have valid, reasonable concerns that, if Defendants and MDE are allowed

to take over the JPS District, Defendants and MDE will not improve student academic performance

and/or student accomplishments at the JPS District, which should be the ultimate goal of public

15
school education, but rather will harm them. Plaintiffs have a Constitutionally-recognized right to

be heard before their education rights are affected.

67. Plaintiffs also have a vested interest in recruiting and retaining quality teachers and

administrators for their public education.

68. Indeed, Plaintiffs have valid, reasonable concerns that, if Defendants and MDE are

allowed to take over the JPS District, good teachers and administrators will involuntarily leave

through terminations, and others will leave voluntarily for less-defamed public schools districts

with better job security, pay, parental involvement, and local rather than state control. The inevitable

departure of good teachers and administrators from the JPS District will adversely affect Plaintiffs.

Plaintiffs have a Constitutionally-recognized right to be heard before their education rights are

affected.

69. Plaintiffs have valid, reasonable concerns that, if Defendants and MDE are allowed

to take over JPS, a number of parents who have the financial ability to homeschool or attend private

schools will remove their children from the JPS District, as they have said they would.

70. Plaintiffs have valid concerns that, decades after trying to recruit and retain white

students back to JPS District schools, those schools will now become less diverse and less

integratedracially, demographically, and economically, thereby harming the JPS District. Indeed,

Plaintiffs reasonably believe that will happen under a conservatorship, which would be antithetical

to Plaintiffs belief that more diversity is important to their schoolchildrens broader growth.

71. Many of the JPS Schoolchildren attend successful A and B grade schools within

the JPS District. Many JPS students test and perform well above state averages, and above national

averages. Although these factors would certainly weigh against a finding of an extreme emergency

16
situation, none of those JPS students superior academic achievements, or successful A and B

grade schools are mentioned in the MDE audits.

72. Plaintiffs have no confidence that Defendants or MDE know what Plaintiffs believe

to be the best interests of their JPS Schoolchildren. Plaintiffs have no confident that Defendants or

MDE are acting in the JPS Schoolchildrens best interest, or in the best interests of other JPS

students and parents.

73. The morale of JPS students and parents, including Plaintiffs, has been harmed by

the extreme emergency situation accreditation and conservatorship hearings, and will be further

harmed if Defendants and MDE are allowed to take over the JPS District.

74. Likewise, the morale of JPS teachers, principals, and other administrators and

employees, has been harmed by the hearings, and will be further harmed if Defendants and MDE

are allowed to take over the JPS District. This declining morale directly affects the Plaintiffs and

their Constitutionally-protected education rights.

75. Additionally, if Defendants and MDE are successful in their efforts to take over the

JPS District, recruiting and retaining good teachers, principals, and administrators will be adversely

affected.

76. It is difficult for JPS to recruit and retain good teachers and principals, including

Plaintiffs teachers and principals. Stability and job security is an important consideration.

77. Under such a conservatorship, Plaintiffs teachers, principals, and other

administrators will have job insecurity. The teachers, principals, and other administrators will be

terminable at-will by Defendants, directly and/or indirectly.

78. This declining ability to recruit and retain good teachers, principals, and

administrators directly affects the Plaintiffs and their Constitutionally-protected education rights.

17
79. Further, if Defendants and MDE are successful in taking over JPS, JPSs District

Superintendent will be unable to implement the JPS Corrective Action Plan.

80. This lack of implementation of the JPS Corrective Action Plan, and inability to

implement same, directly affects the Plaintiffs and their Constitutionally-protected education rights.

81. Through the JPS School Board, Plaintiffs have a direct voice in the JPS District. The

dissolution of the JPS School Board directly affects the Plaintiffs and their Constitutionally-

protected education rights.

82. At the very least, a MDE takeover of JPS would have more than a de minimus

impact on Plaintiffs recognized interest in public education.

83. The impeding takeover by Defendants and MDE has been done without any

hearings for the JPS Schoolchildren and JPS Parents, each of which have a Constitutionally-

recognized interest in the JPS Schoolchildrens education.

84. Moreover, JPS Schoolchildren and JPS Parents have had no meaningful

opportunity to be heard regarding the Defendants decision to move toward an MDE takeover of

JPS.

85. MDE has not included, sought, or seemingly even desired any participation of JPS

Parents or JPS Schoolchildren in its proceedings, investigations, audits, findings, corrective actions,

or hearings which have resulted in an imminent state takeover, including but not limited to the

recent accreditation and takeover hearings.

86. MDE has not adopted or otherwise provided any policies or procedures whereby

JPS Parents or JPS Schoolchildren can adequately protect the Plaintiffs interests in their childrens

public education.

18
87. Moreover, in conducting its hearings on an MDE takeover of the JPS District, MDE

has violated its own procedures, as well as state law, including but not limited to the Mississippi

Open Meetings Act.

JPS SCHOOLCHILDREN OR JPS PARENTS HAD NO HEARING OR MEANINGFUL OPPORTUNITY TO


BE HEARD ON THEIR PROPERTY AND LIBERTY RIGHTS

88. As it relates specifically to JPS, and by way of background, in April 2016, MDE

conducted a limited on-site audit of the District.

89. None of the JPS Parents or JPS Schoolchildren were interviewed for the on-site

audit. Upon information and belief, few if any of other JPS parents and JPSs roughly 27,000

students were either; nor do MDE policies or procedures provide for such.

90. MDE audit procedures do not provide any requirement or opportunity for the JPS

Parents or JPS Schoolchildren to be interviewed, or otherwise be heard.

91. The JPS Schoolchildren and JPS Parents were not asked to participate in any on-

site audit. Upon information and belief, few if any other JPS parents and JPS students were either;

nor do MDE policies or procedures provide for such.

92. Thereafter, in August 2016, MDE issued a report identifying a number of issues

related to student safety, among others.

93. MDE procedures did not and not provide for or require notice or delivery of copies

of any audit to JPS Schoolchildren and JPS Parents.

94. None of the JPS Schoolchildren and JPS Parents were requested to respond to the

on-site audit. Upon information and belief, few if any other JPS parents and JPS students were

either; nor do MDE policies or procedures provide for such.

19
95. In response to the audit, JPS Parents or JPS Schoolchildren were not interviewed,

or otherwise given an opportunity to be heard. Upon information and belief, few if any other JPS

parents and JPS students were either; nor do MDE policies or procedures provide for such.

96. The JPS Schoolchildren and JPS Parents were not asked to participate in any

response to the on-site audit. Upon information and belief, no other JPS parents or JPSs roughly

27,000 students were either; nor do MDE policies or procedures provide for such.

97. In response to the audit, JPS created a detailed Corrective Action Plan (the Plan).

The Plan was implemented on December 15, 2016, after being approved by MDE. The District

aggressively addressed the issues identified by MDE and set a timeline for completion of its stated

goals. Most of those timelines required completion of each corrective action within one calendar

year, or less.

98. Defendants policies and procedures do not provide for any involvement by JPS

Schoolchildren or JPS Parents in creating, implementing, or approving any corrective action plan.

99. While the JPS District was working to take the actions described in the Corrective

Action Plan, MDE conducted a second audit which began in September of 2016 and was

completed on July 31, 2017. The audit report was provided to the District on August 31, 2017. It

is more than 600 pages long.

100. JPS Schoolchildren and JPS Parents were not notified of the second audit, were not

provided copies of the second audit, and were not contacted to be informed of how they could

obtain a copy.

101. The Accreditation Audit Procedures established, approved and utilized by the

Defendants, the Commission on School Accreditation, and MDE did not and do not provide any

20
procedures, any hearing, or any other opportunity for the JPS Schoolchildren or JPS Parents to have

any meaningful input in responding to the second audit.

102. Moreover, even if the Accreditation Audit Procedures had provided any procedures,

any hearing, or any other opportunity for the JPS Schoolchildren or JPS Parents to have any

meaningful input in responding to the second audit, which they clearly do not, even then, eight (8)

school days is an insufficient and unreasonable amount of time for the Plaintiffs to respond, even if

they had been given the opportunity to do so.

103. According to Accreditation Audit Procedures, the District Superintendent was to be

given 30 school days from receipt of the report to respond to any deficiency cited. The JPS District

was given only 8 school days, despite its request for additional time to respond. Likewise, the

same procedures require that an exit conference be scheduled between the auditor and the JPS

District to explain the auditors basis for finding non-compliance. Id. This conference also was not

provided.

104. Instead, in its haste to institute MDE conservatorship proceedings against the

District, which has much more than just a de minimus impact to the JPS Schoolchildren and JPS

Parents, the Commission went forward with a hearing on September 13, 2017 (the Commission

Hearing), purportedly to address the deficiencies purportedly revealed by the 2017 audit report.

105. The Commission Hearing was held at the MDE Building on West Street in

downtown Jackson, at the site of the former Central High School Building.

106. The MDE Building has a large auditorium on the 2nd floor that seats an estimated

250 people, plus has additional standing room capacity.

107. Plaintiffs and many other JPS parents and supporters desired to personally attend

the Commission Hearing, and have an opportunity to be heard. Despite the Defendants

21
knowledge of this, instead of holding the Commission hearing in the auditorium, which was

crowded with many of the Plaintiffs, as well as other JPS parents, the Commission Hearing was

held in a much smaller 70-person conference room on the 4th floor.

108. No seats were reserved for JPS parents, including Plaintiffs.

109. None of the Plaintiffs were allowed inside the Commission Hearing.

110. Upon information and belief, other than JPS parents who were acting in their

official capacities, few if any JPS parents or schoolchildren were even allowed in the room for the

Commission Hearing.

111. Plaintiffs had no opportunity to be heard at the Commission Hearing.

112. Plaintiffs and other JPS parents and supporters were provided only the opportunity

to watch the Commission Hearing by videotwo floors down from where the Commission

Hearing was being conducted.

113. After the Commission heard two separate 40-minute presentationsfirst from the

MDE auditor, and then from the JPS District Superintendent, followed by a brief question and

answer session (none of which involved Plaintiffs or other JPS parents or schoolchildren), the

Commission announced that it would return after a lunch break.

114. In the eight (8) school days it was provided, the JPS District respondedto the best

of its abilityto the 600+ page report.

115. Among the JPS Districts primary arguments was that the audit does not accurately

reflect the condition of the JPS District today. The Defendants did not provide Plaintiffs with any

opportunity to be heard on this issue.

116. Because the audit was contemporaneous with the Corrective Action Plan already

prepared and executed by the District, a number of the audits findings describe conditions

22
existing before corrective action was undertaken. The JPS District has made exceptional strides in

the areas of safety, security, transportation, instruction, recordkeeping, facilities, and teacher

recruitment since the Corrective Action Plan was implemented. Though these issues all affect

Plaintiffs Constitutionally-recognized rights, Defendants did not provide Plaintiffs with any

opportunity to be heard on these issues.

The District was reorganized into four Pre-K-12 district areas and hired 14
new principals for the 2017-18 school year. The District also consolidated
Poindexter Elementary with Barr Elementary, repurposed Rowan Middle School
into a full-time location for Re- engaging in Education for All to Progress
(R.E.A.P.), and created a compliance department to monitor the execution of
corrective actions.

The District made significant progress correcting the citations that were
cited by the limited audit from April 2016. The District received 1,541 citations
and to date 1,487 have been corrected, and 1,402 have been certified by MDE as
late of June 26, 2017. Corrective Action installations and replacements include:
833 Fire Extinguishers, 28 Water Coolers, 6 Lavatories, 5 Water Closets, 7
Urinals, 250 Ground Fault Circuit Interrupters, 400 Exit Lights, and 400 Battery
Operated Emergency Light Fixtures.

The District reviewed 100% of its school board policies.

The District reviewed and verified all 2015-2017 graduate records and is
presently following the instructions and procedures for record maintenance as
prescribed by MDEs Manual of Directions for records.
From the 2016 audit, the District has completed 1,402 MDE-certified
corrections to the 1,541 citations in the report.

From the 2017 audit, the District has already completed 412 corrections to
the 706 citations in the report.

The District purchased 44 new buses with GPS to monitor on-time arrival
for the 2017-18 school year. Bus arrival time is over 95 percent, according to
data collected from GPS technology.

The District completed its quarterly inspection in July 2017 and all noted
vehicles are ready for inspection from MDE.

The District has secured 12 schools boiler and pressure vessel


certifications and now awaiting MDEs approval and verifications.

23
The District has secured a professional architectural firm to assess 22
school facilities in addition to MDEs findings. The District is also proceeding
with assessments of an additional 15 school facilities.

The District has a Board approved Instructional Management System.

Teacher mentors have been hired to support new teachers.

The District has repaired all metal detectors and placed metal detectors in
all middle and high schools in the District.

117. Examples of the inaccurate information upon which the MDE based its 2017 audit

report are:

Students identified in the report as failing to meet graduation


requirements did not participate in graduation exercises as reported by MDE.

Callaway High School graduated 200 eligible students instead of the 224
that was reported by MDE in the school year 2016-17.

MDE incorrectly reported the graduation of ineligible students at all seven


(7) high schools.

118. The audit does not accurately reflect the current state of the JPS District. The

Defendants did not provide Plaintiffs with any opportunity to be heard on these issues.

119. Upon information and belief, Defendant Commissioner Heather Westerfield and

the other Commissioners took the MDE audit with them for their deliberations in a separate

room, but left behind the binders containing the JPS audit response.

120. Upon their return, the Commission went directly into executive session, and then

segregated themselves to another room that was even smaller than the 70-person capacity

Commission Hearing room.

121. Upon information and belief, before going into executive session, the Commission

failed to vote upon or state the specific exception to the Mississippi Open Meetings Act that it

24
found applicable, as required by Mississippi law. No known applicable exception exists. Such

action was illegal and unconstitutional.

122. Plaintiffs were then not allowed to watch the nearly two hours of Commission

deliberations.

123. Plaintiffs have no way of knowing whether any of their concerns affecting their

property and liberty interests were even discussed, or otherwise considered.

124. Once the Commission went into executive session, the video feed of the

Commission Hearing was blocked.

125. The Commissions deliberations for the next hour and forty-five (45) minutes were

all conducted in secrecy.

126. Within minutes of coming out of executive session at the September 13, 2017,

Commission Hearing, Defendant Heather Westerfield and the Commission voted to declare an

extreme emergency situation in the JPS District and recommend a state takeover to the Board of

Education.

127. The State Board met on September 14, 2017, to consider and vote on the

Commissions recommendation.

128. The State Board is permitted to seek a state of emergency in a local school

district only under limited circumstances, including an extreme emergency situationthat

jeopardizes the safety, security or educational interests of the children enrolled in the schools in

that district and that emergency situation is believed to be related to a serious violation or

violations of accreditation standards or state or federal law. Miss. Code. Ann. 37-17-6(12)(b).

129. The existence of an extreme emergency suggests that conditions at this

moment are so dire that the state must intervene.

25
130. But many of the conditions on which the Defendants based their conclusions do

not exist today.

131. Under federal law and Mississippi law, it was arbitrary and capricious for the

State Board, including Defendant Aultman, to accept the recommendation of the Commission

when that recommendation is based on outdated data and an incomplete response to the 2017

audit report. Mississippi State Dept of Health v. Natchez Community Hosp., 743 So. 2d 973, 977

(Miss. 1999) (An administrative agencys decision is arbitrary when it is not done according to

reason and judgment, but depending on the will alone. An action is capricious if done without

reason, in a whimsical manner, implying either a lack of understanding of or disregard for the

surrounding facts and settled controlling principles.)

132. Nor do Defendants and MDEs own actions support their contention that an

extreme emergency exists. More than 17 months have elapsed since MDE issued its first audit

report on student safety issues. MDE then took nearly a year to complete its on-site audit, and

required an additional thirty days to complete its report. Never during that period has MDE

suggested that students in the District were in such grave danger that emergency action was

required.

CAUSES OF ACTION

COUNT I: INJUNCTIVE RELIEF

DEFENDANTS HAVE NOT PROVIDED PLAINTIFFS WITH MINIMUM DUE PROCESS, PLAINTIFFS
WILL BE IMMEDIATELY AND IRREPARABLY INJURED IF A STATE TAKEOVER OCCURS, AND
PLAINTIFFS HAVE NO RECOURSE WITHOUT INJUNCTIVE RELIEF

133. Federal Rule of Civil Procedure 65(b) governs Temporary Restraining Orders.

Such orders may issue without notice to the adverse party if:

26
(1) Specifics facts in an affidavit or a verified complaint clearly show that
immediate and irreparable injury, loss, or damage will result to the movant
before the adverse party can be heard in opposition; and

(2) the movants attorney certifies to the court in writing any efforts made
to give the notice and the reasons why it should not be required.1

Fed. R. Civ. P. 65(b). This Court has substantial discretion to grant or deny a motion for

TRO.

134. Immediate and irreparable injury, loss, or damage to the Plaintiff JPS Parents

and JPS Schoolchildren will occur if this Court does not act to prevent the Defendants and

MDEs proposed takeover without affording them a hearing.

135. If a state of emergency is declared and the Defendants and State Board assert a

conservatorship over the JPS District, the following will occur:

Some or all state funds may be escrowed until the State Board determines
corrective actions are taken or that the needs of students [including Plaintiff JPS
Schoolchildren] warrant release of funds. Miss. Code. Ann. 37-17-6(12)(b)(i).

The State Board may override any decision of the local school board or
superintendent of education, or both, concerning the management and operation of
the school district, or initiate and make decisions concerning the management and
operation of the school district. Miss. Code. Ann. 37-17-6(12)(b)(ii).

The State Board may assign an interim superintendent, or in its discretion, contract
with a private entity with experience in the academic, finance and other operational
functions of schools. Miss. Code. Ann. 37-17-6(12)(b)(iii).

The State Board may grant transfers to students who attend this school district so
that they may attend other accredited schools or districts in a manner that is not in
violation of state or federal law. Miss. Code. Ann. 37-17-6(12)(b)(iv).

The State Board may reduce local supplements paid to school district employees,
including, but not limited to, instructional personnel, assistant teachers and
extracurricular activities personnel, if the districts impairment is related to a lack
of financial resources, but only to an extent that will result in the salaries being
comparable to districts similarly situated, as determined by the State Board of
Education. Miss. Code. Ann. 37-17-6(12)(b)(vi).

27
136. Although these statutory provisions are written in permissive terms, it is evident

that after the Defendants and State Board are allowed to takeover, the Plaintiff JPS

Schoolchildren and JPS Parents have no recourse to prevent Defendants from implementing any

or all of the procedures listed above.

137. In particular, the inevitable transfer of students out of the JPS District, loss of

students to private schools and homeschooling, termination of the Superintendent and JPS School

Board, reduction in pay for teachers, principals, faculty and staff, involuntary or voluntary loss of

teachers, principals, faculty and staff, and the loss of local control over the JPS District constitute

harm which is both immediate and which cannot be remedied by any subsequent action of the

Court.

138. Further, the Plaintiff JPS Schoolchildren and JPS Parents, and the JPS District,

will not be able to recruit qualified teachers and administrators because the states Educational

Employment Procedures Law will be suspended during the conservatorship.

139. Finally, as the State is not susceptible to suits for damages, the Plaintiff JPS

Schoolchildren and JPS Parents will have no remedy for any monetary losses resulting from the

actions of the Defendants and the State Board.

140. All of these constitute irreparable harm and justify the imposition of a TRO.

141. Inadequacy of the remedy at law is the basis upon which the power of injunction

is exercised.

142. In other words, an injunction will not issue when the party seeking it has a

complete and adequate remedy by appeal.

143. The Mississippi Supreme Court has determined that, under Mississippi law, there

is no right to appeal an emergency declaration from the Governor, and no right to judicial review

28
of a non-binding request by MDE. Miss. State Bd. Educ. v. Leflore County Bd. of Educ., 2013

Miss. LEXIS 552 (Miss. 2013).

144. Therefore, Plaintiffs lack a complete and adequate remedy.

145. Here, after a state of emergency has been declared, there is no procedural vehicle

by which the Plaintiff JPS Schoolchildren and JPS Parents can take any appeal.

146. Accordingly, it is not merely that an appeal is inadequate, it is that no appeal right

exists. This too constitutes irreparable harm.

147. The Plaintiff JPS Schoolchildren and JPS Parents are entitled to procedural and

substantive due process under the United States Constitution.

148. On the bases identified herein, this Court should issue a Temporary Restraining

Order prohibiting the Defendants from any further proceedings concerning the Jackson Public

School District until such time as the Plaintiff JPS Schoolchildren and JPS Parents have been

given all procedural and substantive due process to which they are entitled under the Due

Process Clause.

COUNT II: 42 U.S.C. 1983

149. Plaintiffs incorporate and reallege each of the foregoing paragraphs as if fully set

forth herein.

150. Defendants violated 42 U.S.C. 1983.

151. These Defendants conduct, made under color of state law, operated to deprive

Plaintiffs of their clearly-established rights guaranteed by the United States Constitution and

federal statutes, specifically including:

(a) The right of due process protected by the Fourteenth Amendment of the
United States Constitution;

29
(b) The right to free speech protected by the First Amendment of the United
States Constitution; and

(c) The right to freedom of association protected by the First Amendment


of the United States Constitution.

152. The above-described actions were taken by the Defendants while acting under the

color of state law for purposes of 42 U.S.C. 1983, and caused Plaintiffs, the JPS Schoolchildren

and JPS Parents, to be deprived of their clearly-established rights secured by the United States

Constitution under the First, Fourth, Fifth, Eighth, and Fourteenth Amendments.

153. The Defendants were aware of the deprivations complained of herein, and

condoned or were deliberately indifferent to such conduct.

154. As a direct and proximate result of the foregoing, the Defendants deprived

Plaintiffs, the JPS Schoolchildren and JPS Parents, of their rights and privileges as citizens of the

United States, and Defendants caused, and will continue to cause, Plaintiffs to be hurt and injured

in their property rights to public education, and to suffer significant indignities.

155. The schoolchildren of the Jackson Public School District clearly have a property

interest in receiving a public education.

156. Under due process protections, that interest cannot be taken away without proper

procedural safeguards.

157. However, under Mississippi law, the Plaintiffs, the JPS Schoolchildren and their

JPS Parents, have no right to a hearing before the Mississippi Department of Education can take

over their school district, and their schools.

158. The Defendants policies and procedures for an MDE takeover are fundamentally

unfair.

30
159. The Mississippi Department of Education procedure fails to satisfy procedural due

process requirements.

160. Even if the Court were to find that the takeover procedure of the Mississippi

Department of Education satisfies procedural due process requirements, those procedures were not

followed in the case of the takeover of these the JPS Schoolchildren and JPS Parents school

district and schools.

161. The Mississippi Constitution provides rights to an equal, free, and public education

beyond those in the federal constitution.

162. The Mississippi Department of Education has an abysmal record when taking

power and control away from local school boards and administration.

RECOGNIZING STUDENTS AND PARENTS PROPERTY AND LIBERTY RIGHTS IN EDUCATION

A. UNDER THE DUE PROCESS CLAUSE OF THE UNITED STATES


CONSTITUTION, PUBLIC SCHOOL STUDENTS AND THEIR PARENTS
HAVE A RECOGNIZED PROTECTABLE PROPERTY AND LIBERTY INTEREST
REQUIRING DUE PROCESS OF LAW

163. Primary and secondary students have a recognized property and liberty interest in

their right to a public education under the Due Process Clause of the Fourteenth Amendment. See

Goss v. Lopez, 419 U.S. 565, 576 (1975); see also Swindle v. Livingston Parish Sch. Bd., 2008

U.S. Dist. LEXIS 100039 (Although there is no constitutional right to a public education, once a

state creates a public school system and requires attendance at those schools, a protectable property

interest arises). 3

3
Mississippi has created a public school system, which requires that children attend school. Therefore,
plaintiffs and their children have a protectable property interest in these schoolchildren receiving an
education. See Scott v. Livingston Parish School Board, et al., 548 F.Supp. 2d 265, 267 (M.D. La. 208).

31
164. Thus, the State is constrained to recognize a students legitimate entitlement to a

public education as a property interest which is protected by the Due Process Clause and which

may not be taken away for misconduct without adherence to the minimum procedures required by

that Clause. Id.

165. Students right to due process is triggered whenever the deprivation is not de

minimis. Id. at 576.

166. In determining the appropriate degree of due process, the Supreme Court has stated

three distinct factors must be considered:

First, the private interest that will be affected by the official action; second, the risk of an
erroneous deprivation of such interest through the procedures used, and the probable
value, if any, of additional or substitute procedural safeguards; and finally, the
Governments interest, including the function involved and the fiscal and administrative
burdens that the additional or substitute procedural requirement would entail. See, e.g.,
Goldberg v. Kelly, supra, at 263-271.

Mathews v. Eldridge, 424 U.S. 319, 335, 96 S. Ct. 893, 903, 47 L. Ed. 2d 18, 33, 1976
U.S. LEXIS 141, *31-32, 41 Cal. Comp. Cases 920 (U.S. 1976).

B. UNDER THE DUE PROCESS CLAUSE OF THE MISSISSIPPI CONSTITUTION,


PUBLIC SCHOOL STUDENTS AND THEIR PARENTS HAVE A
FUNDAMENTAL RIGHT TO EDUCATION REQUIRING DUE PROCESS OF
LAW

167. Moreover, the JPS Schoolchildren and JPS Parents Plaintiffs note that while this

action has been brought under the federal due process clause, this clause provides Plaintiffs the

heightened protections afforded by the Mississippi due process clause set out at Article 3, Section

14 of the Mississippi Constitution, and is construed similarly.

168. In this connection, the Mississippi Supreme Court has stated:

While state courts may construe their constitutions in such a way as to offer
broader protections than those found in the federal constitution, we must begin
with the presumption that similar sections of the United States Constitution and
Mississippi Constitution ought to be construed similarly. McCrory v. State, 342
So. 2d 897, 900 (Miss. 1977). Article 3, Section 14, of the Mississippi

32
Constitution, which provides that [n]o person shall be deprived of life, liberty, or
property except by due process of law, is essentially identical to the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.

Blakeney v. McRee, 2016 Miss. LEXIS 87, *17 (Miss. Feb. 25, 2016)

169. The right to a minimally adequate, free public education has been declared to be a

fundamental right of all students by the Mississippi Supreme Court. Clinton Mun. Separate Sch.

Dist. v. Byrd, 477 So.2d 237, 240 (Miss. 1985). See also Hill ex rel. Hill v. Rankin County, Miss.

Sch. Dist., 834 F. Supp. 1112, 1117 (S.D. Miss. 1993) (stating that Mississippi Code Section 37-

1-2 provides the children of Mississippi the right to a free public education).

170. The Mississippi Supreme Courts decision is worth quoting at length given its stress

upon the fundamental nature of the right and its entitlement to procedural protection.

171. A students interest in obtaining an education has been given substantive and

procedural due process protection. See, e.g., Plyler v. Doe, 457 U.S. 202, 217, 102 S. Ct. 2382,

2395, 72 L. Ed. 2d 786 (1982); Bolling v. Sharpe, 347 U.S. 497, 500, 74 S. Ct. 693, 98 L. Ed.884

(1954); Pierce v. Society of Sisters, 268 U.S. 510, 535, 45 S. Ct. 571, 69 L. Ed.1070 (1925); Meyer

v. Nebraska, 262 U.S. 390, 400, 43 S. Ct. 625, 67 L. Ed.1042 (1923); 46 Miss.L.J., at 1043.

172. This protected interest, however, is largely a state created interest, for the provision

of free public education has been accepted as a responsibility of this state (as well as the other 49

states).

173. The Mississippi legislature has declared a part of the public policy of this state the

provision of quality education for all school age children in the state, Miss. Code Ann. 37-1-

2(f) (Supp.1984), this out of recognition of the effect of education upon the social, cultural and

economic enhancement of the people of Mississippi. Miss. Code Ann. 37-1-2 (Supp. 1984).

33
174. Thus, while the federally-recognized due process rights under the United States

Constitution arise out of a property interest in education, the right to a minimally adequate

public education created and entailed by the laws of Mississippi is one we can only label

fundamental.

175. As such, this right, to the extent our law vests it in the young citizens of this state,

enjoys the full substantive and procedural protections of the due process clause of the

Constitution of the State of Mississippi, whatever construction may be given the Constitution of

the United States. Clinton Municipal Separate School Dist. v. Byrd, 477 So. 2d 237, 240 (Miss.

1985) (Emphasis supplied).

C. AT A MINIMUM, PROCEDURAL DUE PROCESS REQUIRES THE


PLAINTIFFS BE PROVIDED PRIOR NOTICE, AND A HEARING OR
OPPORTUNITY TO BE HEARD

DEFENDANTS NEVER PROVIDED PLAINTIFFS WITH NOTICE, OR A HEARING, AT ALL, MUCH


LESS ONE THAT MEETS MINIMUM DUE PROCESS REQUIREMENTS

176. Since Plaintiffs have a Constitutionally-recognized right in their education,

Plaintiffs are due some procedural due process prior to a state takeover of their schools and their

school district.

177. At a minimum, due process requires that Plaintiffs receive notice and an

opportunity to be heard on matters that have more than a de minimus effect on their rights.

178. The Defendants did not act objectively reasonable in denying Plaintiffs notice and

a hearing.

34
D. DUE PROCESS REQUIRES DEFENDANTS TO ESTABLISH THE REQUIRED
STANDARD OF PROOF

DEFENDANTS NEVER PROMULGATED A STANDARD OF PROOF, AT ALL, MUCH LESS THE CLEAR
AND CONVINCING STANDARD REQUIRED FOR HEARINGS AFFECTING THE JPS
SCHOOLCHILDRENS AND JPS PARENTS PROPERTY AND FUNDAMENTAL EDUCATION RIGHTS

179. Even to the extent that the Defendants are determined by this Court (1) to have

provided Plaintiffs with sufficient hearing(s) that satisfied Plaintiffs Constitutionally-recognized

rights under the Due Process Clause (as distinguished from the JPS Districts rights, which do not

implicate such Constitutional protections), and (2) provided proper notice of same, all of which is

vehemently disputed by Plaintiffs, the Defendants nevertheless never defined the standard of proof

at the hearings, which is necessary under the Due Process Clause.

180. The function of a standard of proof, as that concept is embodied in the Due Process

Clause and in the realm of factfinding, is to instruct the factfinder concerning the degree of

confidence our society thinks he should have in the correctness of factual conclusions for a

particular type of adjudication. In re Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring).

The standard serves to allocate the risk of error between the litigants and to indicate the relative

importance attached to the ultimate decision.

181. The standard of proof is critical to providing the protection required by the Due

Process Clause. As stated by the Supreme Court:

"The function of a standard of proof, as that concept is embodied in the Due


Process Clause and in the realm of factfinding, is to "instruct the factfinder
concerning the degree of confidence our society thinks he should have in the
correctness of factual conclusions for a particular type of adjudication." In re
Winship, 397 U.S. 358, 370 (1970) (Harlan, J., concurring). The standard serves
to allocate the risk of error between the litigants and to indicate the relative
importance attached to the ultimate decision."

Addington v. Texas, 441 U.S. 418, 423, 99 S. Ct. 1804, 1808, 60 L. Ed. 2d 323,
329, 1979 U.S. LEXIS 93, *10-11 (U.S. 1979). (civil commitment requires clear
and convincing evidence).

35
182. Consequently, the Supreme Court has held that the standard of proof to be applied

in a given proceeding must be established in advance:

Standards of proof, like other procedural due process rules[,] are shaped by the
risk of error inherent in the truth-finding process as applied to the generality of
cases, not the rare exceptions. Mathews v. Eldridge, 424 U.S., at 344 (emphasis
added). Since the litigants and the factfinder must know at the outset of a given
proceeding how the risk of error will be allocated, the standard of proof
necessarily must be calibrated in advance. Retrospective case-by-case review
cannot preserve fundamental fairness when a class of proceedings is governed by
a constitutionally defective evidentiary standard.

Santosky v. Kramer, 455 U.S. 745, at 757 (1982) (emphasis added) (holding
termination of parental rights requires clear and convincing evidence standard);
See also Natural Father v. United Methodist Childrens Home, 418 So.2d 807,
810 (Miss. 1982) (following Santosky, supra and holding preponderance of the
evidence standard inadequate to terminate parental rights even where authorized
by statute.).

183. Thus, Defendants were required to establish the standard of proof at the outset of

the accreditation and takeover proceedings. Absent a standard of proof promulgated in advance

of the accreditation and takeover proceedings, neither Plaintiffs nor the JPS District could know

how the risk of error was to be allocated, and Plaintiffs were necessarily denied due process and

unduly prejudiced thereby. Indeed, absent such a standard, even retrospective case by case review

cannot preserve fundamental fairness. Santosky, supra.

184. To reach the conclusion that Plaintiffs were denied due process, and that they will

be denied due process going forward, we do not need to decide the appropriate standard of proof.

It is sufficient to determine that Defendants have not promulgated one.

185. Accordingly, this Court should declare that the failure to have established a

standard of proof in advance of the MDE state accreditation and conservatorship hearings

deprived Plaintiffs of due process. The takeover by Defendants and MDE should be enjoined,

reversed and rendered.

36
186. Further, even should this Court decline to enjoin, reverse and/or render, it should

declare that Defendants ongoing failure to adopt a standard of proof for takeover hearings

denies due process going forward to Plaintiffs, and to every student in each and every

Mississippi public school district.

DECLARATORY JUDGMENT

187. Plaintiffs incorporate and reallege each of the foregoing paragraphs as if fully set

forth herein.

188. Pursuant to the Mississippi Open Meetings Act, Miss. Code Ann. 25-41-1, et seq.,

official meetings of public bodies are required to be public and open.

189. The Legislative intent of the Mississippi Open Meetings Act is set forth in Miss.

Code Ann. 25-41-1:

It being essential to the fundamental philosophy of the American constitutional

form of representative government and to the maintenance of a democratic society

that public business be performed in an open and public manner, and that citizens

be advised of and be aware of the performance of public officials and the

deliberations and decisions that go into the making of public policy, it is hereby

declared to be the policy of the State of Mississippi that the formation and

determination of public policy is public business and shall be conducted at open

meetings except as otherwise provided herein.

190. Miss. Code Ann. 25-41-7 states the limited circumstances in which Defendants,

the Commission and/or the State Board may go into executive session closed to the public:

(1) Any public body may enter into executive session for the transaction of public
business; provided, however, all meetings of any such public body shall
commence as an open meeting, and an affirmative vote of three-fifths (3/5)
of all members present shall be required to declare an executive session.

37
(2) The procedure to be followed by any public body in declaring an executive
session shall be as follows: Any member shall have the right to request by
motion a closed determination upon the issue of whether or not to declare an
executive session. Such motion, by majority vote, shall require the meeting to
be closed for a preliminary determination of the necessity for executive
session. No other business shall be transacted until the discussion of the nature
of the matter requiring executive session has been completed and a vote, as
required in subsection (1) hereof, has been taken on the issue.

(3) An executive session shall be limited to matters allowed to be exempted


from open meetings by subsection (4) of this section. The reason for holding
such an executive session shall be stated in an open meeting, and the reason
so stated shall be recorded in the minutes of the meeting. Nothing in this
section shall be construed to require that any meeting be closed to the public,
nor shall any executive session be used to circumvent or to defeat the purposes
of this chapter.

(4) A public body may hold an executive session pursuant to this section for one or
more of the following reasons:

(a) Transaction of business and discussion of personnel matters relating to the


job performance, character, professional competence, or physical or mental
health of a person holding a specific position.
(b) Strategy sessions or negotiations with respect to prospective litigation,
litigation or issuance of an appealable order when an open meeting would have
a detrimental effect on the litigating position of the public body.
(c) Transaction of business and discussion regarding the report, development or
course of action regarding security personnel, plans or devices.
(d) Investigative proceedings by any public body regarding allegations of
misconduct or violation of law.
(e) Any body of the Legislature which is meeting on matters within the
jurisdiction of such body.
(f) Cases of extraordinary emergency which would pose immediate or
irrevocable harm or damage to persons and/or property within the jurisdiction
of such public body.
(g) Transaction of business and discussion regarding the prospective purchase,
sale or leasing of lands.
(h) Discussions between a school board and individual students who attend a
school within the jurisdiction of such school board or the parents or teachers of
such students regarding problems of such students or their parents or teachers.
(i) Transaction of business and discussion concerning the preparation of tests
for admission to practice in recognized professions.
(j) Transaction of business and discussions or negotiations regarding the
location, relocation or expansion of a business or an industry.

38
(k) Transaction of business and discussions regarding employment or job
performance of a person in a specific position or termination of an employee
holding a specific position. The exemption provided by this paragraph includes
the right to enter into executive session concerning a line item in a budget which
might affect the termination of an employee or employees. All other budget
items shall be considered in open meetings and final budgetary adoption shall
not be taken in executive session.
(l) Discussions regarding material or data exempt from the Mississippi Public
Records Act of 1983 pursuant to Section 25-11-121.
(5) The total vote on the question of entering into an executive session shall be
recorded and spread upon the minutes of such public body.

(6) Any such vote whereby an executive session is declared shall be applicable only
to that particular meeting on that particular day.

Miss. Code Ann. 25-41-7 (emphasis added).

191. Defendants have violated the Mississippi Open Meeting Act, and failed to follow

the procedures outlined under Mississippi law for going into an executive session closed to the

public.

192. Moreover, none of the exceptions to the Defendants failed to follow the procedures

outlined under the Mississippi Open Meeting Act for going into closed executive session.

193. Though it was without any legal authority to do so, Defendants illegally closed the

Commission Hearing and the conservatorship hearing to Plaintiffs and the public, without

articulating or having any exception under the Mississippi Open Meetings Act, as statutorily

required, much less a valid one.

194. Under Rule 57 of the Federal Rules of Civil Procedure, Plaintiff JPS Schoolchildren

and JPS Parents are entitled to a declaratory judgment that Defendants have violated the

Mississippi Public Meetings Act, and that the deliberations and votes taken by Defendants in

secrecy and others Commissioners and Board Members are invalid, and violate due process.

WHEREFORE, PREMISES CONSIDERED, the Plaintiffs pray:


a. That process issue to the Defendants and that they be required to answer;

39
b. For temporary and permanent restraining orders, and other injunctive relief prohibiting

the Defendants from any takeover or further proceedings concerning the Jackson Public

School District until such time as the Plaintiff JPS Schoolchildren and JPS Parents have

been given all procedural and substantive due process to which they are entitled under

the Due Process Clause of the United States Constitution, and the Mississippi

Constitution;

c. That Plaintiffs be awarded damages;

d. That Plaintiffs be awarded reasonable expenses incurred in this litigation, including

reasonable attorney and expert fees, pursuant to 42 U.S.C. 1988 (b) and (c);

e. A declaration under F.R.C.P. 57 that Defendants have violated the Mississippi Public

Meetings Act, and that the deliberations and votes taken by Defendants in secrecy and

others Commissioners and Board Members are invalid, and violate due process;

f. That the Plaintiffs receive any other further and general relief to which it may appear

they are entitled.

___________________________________
Dorsey R. Carson, Jr., MSB #10493
David S. Humphreys, MSB #100085
Julie C. Skipper, MSB #101591
S. Anna Powers, MSB #103201
Gerald A. Mumford, MSB #101902
Attorneys for Plaintiffs
OF COUNSEL:
CARSON LAW GROUP, PLLC
Capital Towers, Suite 1336
Jackson, MS 39201
Telephone: 601.351.9831
Facsimile: 601.510.9056
Email: dcarson@thecarsonlawgroup.com
jskipper@thecarsonlawgroup.com

40
THE MUMFORD LAW FIRM, PLLC
820 North St.
Jackson, MS 39202
Telephone: 601.398.2347
Facsimile: 888.801.9389
Email: gmumfordlaw@gmail.com

MISSISSIPPI CENTER FOR JUSTICE


Jeremy Eisler, Esq., Of Counsel
963 Division St.
Biloxi, MS 39530
Telephone: 228.435.7284
Facsimile: 228.435.7285

41